Bhaggu Yadav vs State Of Chhattisgarh
2023 Latest Caselaw 655 Chatt

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                                                                                NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                               MCRC No. 11166 of 2022
     Bhaggu Yadav S/o Bhagwanta Yadav Aged About 72 Years R/o Tulsaghat Lormi
      P.S. Lormi District Mungeli Chhattisgarh

                                                                         ---- Applicant

                                       Versus

     State Of Chhattisgarh Through Station House Officer Police Station Lormi District
      Lormi Chhattisgarh

                                                                    ---- Non-Applicant

For the Applicant                 :      Mr. Vivek Sharma, Advocate
For Non-Applicant                 :      Mr. Shrestha Gupta, P. L.
For Objector                      :      Mr. Pallav Mishra, Advocate

                      Hon'ble Shri Justice Sachin Singh Rajput
                                   Order On Board
01.02.2023
    1.

The applicant has preferred the first bail application under Section 439 of CrPC for grant of regular bail as he is in jail since 23.09.2022 in connection with Crime No.655/2022 registered at Police Station- Lormi, District- Mungeli (C.G.) for the offence punishable under Sections 307, 302/34 of IPC.

2. The case of prosecution in brief, is that the complainant namely Gonda Bai lodged a report alleging that she was informed by a local boy that her son namely Pratap is laying in front of her house in burned condition, after which she took her son to Primary Health Centre, Lormi where the injured informed that co-accused poured petrol upon him and thereafter applicant burned him. Later on the injured was referred to Bilaspur as his condition was worsen. In Bilaspur, the Executive Magistrate has recorded dying declaration in which he stated the same and thereafter he died in hospital. Therefore, aforesaid offences registered against the applicant.

3. Counsel for the applicant submits that the applicant is an innocent person and he has been falsely implicated in this case. He further submits that there are two accused persons in the present crime and the present applicant is aged about 72 years, during course of investigation, dying declaration was recorded in which the name of applicant is not mentioned. He also submits that dying declaration was recorded in presence of two witnesses namely Bhagwant Singh and Rajendra Dhurw and in their 161 statement they have not stated that dying declaration was recorded in their

presence. He submits that the deceased was burned about 85% and he was not in a state to give dying declaration. Looking to the percentage of burnt, it cannot be said that dying declaration is prudent or provident without any pollution. He further submits that the investigation is complete, charge-sheet has been filed and the applicant is aged about 72 years, therefore, he may be released on bail. He placed reliance upon the judgment of Hon'ble Supreme Court in the case of Anil ARI Vs. State of West Bengal reported in (2009) 11 SCC 363.

4. On the other hand, Counsel for the State opposes the bail application and submits that dying declaration of the deceased was recorded by Executive Magistrate and he gave categorical finding that the deceased was in a fit and conscious state to make the declaration. He further submits that the name of present applicant is also reflected in dying declaration, therefore, it cannot be said that dying declaration is suffering from any pollution or inadvertence, it is a case of dying declaration and its veracity can be considered at the stage of trial and after examination of witnesses. He placed reliance upon the judgment of Hon'ble Supreme Court in case of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 to substantiate his submission.

5. Counsel for the objector vehemently opposes the bail application and submits that the case law cited by counsel for the applicant does not fit to facts of present case as the application for suspension of sentence was rejected by Hon'ble High Court and thereafter SLP preferred before Hon'ble Supreme Court was allowed.

6. I have heard learned counsel for the parties and considered their rival submissions.

7. Considering the totality of the facts and circumstances of the case, looking to the nature of allegations, dying declaration, evidence collected so far and in view of judgment of Hon'ble Supreme Court in case of Laxman (Supra), at this stage it cannot be said that the dying declaration is suffering from any pollution or inadvertence, it can be considered at the stage of trial, therefore, I am not inclined to allow this application.

8. Accordingly, the bail application of applicant is rejected.

                          Sd/-                                     Sd/-

                                                          (Sachin Singh Rajput)
                                                                   Judge
parul